June - Ventura County Bar Association

VCBA MISSION STATEMENT
To promote legal excellence, high ethical standards and
professional conduct in the practice of law; to improve
access to legal services for all people in Ventura County;
and to work to improve the administration of justice.
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MAYBE “IPAD JUDGES” ARE NOT SUCH A GOOD IDEA
Page 9
by Greg May
WILLIAM M. Grewe
PRESIDENT’S COLUMN: “RAISE A GLASS TO TURNINGS OF THE SEASON”
3
Rachel Coleman
BARRISTERS CORNER
5
Roni Keller
THE “DISENTITLEMENT” SWORD: A LITTLE-KNOWN DOCTRINE THAT
PROMOTES CLIENTS’ INTERESTS WHILE ADVANCING JUDICIAL ECONOMY
13
BRINGING CIVILITY TO CIVIL LITIGATION
14
Ear to the wall
16
Classifieds
17
Exec’s Dot…Dot…Dot…
18
Sasha L. Collins
Steve Henderson
ARTICLES CAN BE VIEWED ONLINE AT WWW.VCBA.ORG
2 CITATIONS
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JUNE 2015
CREATIVE DISPUTE RESOLUTION
MEDIATION
Judge of the Superior Court
County of Ventura, Ret.
[email protected]
Hon. David W. Long (Ret.)
and
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JUNE 2015
•
CITATIONS 3
PRESIDENT’S COLUMN:
“RAISE A GLASS TO TURNINGS OF THE SEASON”
Don’t Carry It All– Colin Meloy/The Decemberists, 2011
by Bill Grewe
the bench, and sharing the perspective is
appreciated.
He’s Pretty Much Seen it All. Brown-bag
it with Judge Donald Coleman. “Do’s
and Don’ts for Attorneys and Civility in
the Courtroom.” June 24, noon, Dept.
36. MCLE fee, only. vcba.org; flyer; or RSVP
to Nadia at [email protected]. This is another in
a very good series, open to all, presented by
Barristers. If you are new to the practice of
law, you should check out this group, but
be sure to wear your running shoes. Whole
lotta energy with this bunch. We open the season with a swearing-in
ceremony of new admittees on June 9 at 4
p.m. in Courtroom 22. We close the month
on the morning of June 27 with the Law
Day 5k and 1k fun run. runsignup.com.
Joe Strohman and his team of volunteers
are hard at work/fun putting all the pieces
in place to make it an enjoyable morning
for all. The run supports VLSP, which is
changing its name. Watch for Ventura
County Legal Aid. Credit Charmaine
Buehner, VCBA Vice President, for the
change. “Call it what it is.” There will be
volunteer opportunities, so stay tuned, and
come on out to Kimball Park (Ventura) on
June 27.
Speaking of change, there is a new Case
Management Attorney handling the MWF
22B calendars: Genalin Riley, a registered
nurse in both New Jersey and California,
by the way. UCLA Law. A 1996 admittee
who began with a small Century City firm
before spending thirteen years with LASC
as a research attorney and most recently, as
counsel for the State Bar Court. As a Rutgers
undergrad, she roots for the Scarlet Knight
along with the Bruins, NY Giants and NJ
Devils. If you are unfamiliar with Rutgers
pride, let’s just say that while UK boasts that
it can fill its arena at midnight for the seasonopening basketball practice, Rutgers can fill a
stadium when it lines the football field. And
don’t let Genalin’s calm demeanor fool you.
She cut her teeth selling concessions at NY
Giants games in the Meadowlands, so she is
capable of taking it up a notch if need be. Have Fun Will Travel. Women Lawyers
of VC. Joint meeting with SBA Women
Lawyers. Carpinteria. June 3. 6:00 to
8:00. Carpinteria Women’s Club, 1059
Vallecito Road. Mixer and Elim. of Bias
program. MCLE. wlvc.org or flyer. Kathi
Smith pulls together good program after
good program.
Not Your Typical Fish Story. The Natural
Resource Section’s June program is certain
to pique your interest. You’re Building a
$40 Million Fish Passage….for how many
fish, again?! It’s about the challenges of
protecting and restoring the SoCal steelhead
population in the Santa Clara River and
in Piru Creek while balancing all other
interests. Complicated, sure, but Gisele
Goetz, who is presenting this program, is
bringing in the source: The speaker will be
Catherine McCalvin, Conservation Manager
of the United Water Conservation District.
June 17, 12-1:30, Bar offices, MCLE. vcba.
org/flyer. Thank you, on behalf of all VCBA members,
to our local judges who have spoken at a
2015 CLE programs: Judges Tari Cody,
Manuel Covarrubias, Matthew Guasco,
Glen Reiser and Rebecca Riley. (And it’s
only June 1!) Much more than the courtroom
clock comes into view from a seat on
Heck, the window works for me. “Bringing
Clients in the Door.” June 22, 12-1:30, Bar
Offices. MCLE. $30 VCBA members/$45
non-members (lunch included). *PR and
How it is Implemented* Jennifer Goodard
Combs and R.W. Ziegler, Jr., Esq. vcba.
org; flyer.
The Great Communicator? VCTLA
June 23, 6 p.m., Tower Club. MCLE. vctla.
org; flyer. Greg Johnson is bringing us
speaker Wendy York, noted trial lawyer out
of Sacramento, who is a special talent, and we
are fortunate that she is making the trek to our
county. “What Trial Lawyers Need to Know
About the Neuro Linguistic Programming
Model of Communication.” Not the same
thing, but it reminds me of something Don
Mattingly, I think it was, once said about a
hitting slump. You look at endless video,
you dissect the mechanics, you call in the
experts, you wait, and then somebody says,
“See it, hit it,” and somehow that works.
This is a WE problem/challenge. Megafirm Orrick, Herrington & Sutcliffe will
now offer paid parental leave of 22 weeks to
nine months in an effort to retain women
lawyers who, in exit interviews, have cited
the inability to balance career and family.
Orrick.com. The VC Family Law Bar Assoc.’s program
originally set in May was moved to June 23
at 6:00, Courtyard by Marriott, Oxnard.
Continued on page 7
4 CITATIONS
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JUNE 2015
2015 VCBA
BOARD OF DIRECTORS
OFFICERS
President
William M. Grewe
President-Elect
Charmaine Buehner
Secretary-Treasurer
Erik B. Feingold
Past President
Laura V. Bartels
Chief Executive Officer
Steve Henderson, CAE
Linda K. Ash
Katherine Hause Becker
Kathryn E. Clunen
Rod L. Kodman
Rachel Coleman
Margaret Coyle
Rennee R. Dehesa
Jill L. Friedman
Douglas K. Goldwater
Joshua S. Hopstone
Thomas J. Hutchinson
Amy Dilbeck Kiesewetter
Kata Kim
Mark Kirwin
Alfonso Martinez
Susan L. McCarthy
Michael A. Strauss
Andy Viets
CITATIONS EDITORIAL BOARD
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Wendy C. Lascher
Court Appointed Receiver/Referee
“Mr. Nielson is more than just a pretty face.
He is one of our best receivers.”
(Hon. John J. Hunter, October 9, 1999)
The Superior Court has appointed Mr. Nielson in over 400 cases
involving the sale of real property, partnership or business
dissolutions, partition actions and matters requiring a referee.
LINDSAY F. NIELSON
Attorney at Law
Member – California Receiver Forum
Email: [email protected]
845 E. Santa Clara, Ventura, CA 93001
(805) 658-0977
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Michael L. McQueen Michael R. Sment
Panda L. Kroll Gregory Herring
Al Vargas Lauren E. Sims
Kathleen J. SmithCarol Mack
Richard M. Norman
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JUNE 2015
•
CITATIONS 5
BARRISTERS'
CORNER
by Rachel Coleman
So far, there are no new babies to announce
on behalf of Barristers in this edition
of Citations. We do have several
announcements regarding fun upcoming
Barristers events. Barristers will host Third
Thirsty Thursday on June 18 at 5:30 -7:30 at
Discovery in Ventura, 1888 East Thompson
Blvd. Come mix and mingle with local
attorneys at this free (if you drink only water)
event. All attorneys, judges, and friends are
invited to attend.
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On June 24 at 12:00 at the Ventura County
Superior Court, Barristers will present our
second MCLE program hosted by Presiding
Judge Donald Coleman titled “Do’s and
Don’ts for Attorneys and Civility in the
Courtroom.” This is a brown bag event
where you can earn one general MCLE
credit. The cost is $15.00 for Barristers and
$25.00 for all others. Law students may
attend the event for free. For all the young
attorneys or attorneys who do not practice
criminal law, this is also an opportunity to
get to meet the Presiding Judge in a more
informal setting. This is a program that you
should not miss. You can RSVP to Nadia at
[email protected] or you can just pay at the door.
On July 16, the Barristers will host our 8th
Annual Bowling Night to benefit Make-AWish Tri-Counties. The event is from 5:307:30 at Harley’s Camarillo, located in the
Ponderosa Shopping Center at 305 Arneill
Road. This event is open to all attorneys,
judges and all friends and family. Your
$10.00 donation, which will be requested
at the door, includes your bowling shoes
and lots of fun! There is also a bottle of
Wild Turkey for the first person to bowl
three strikes in a row. The team with the
highest score will go home with the coveted
Barristers Bowling Ball Trophy to keep in
your office on display until the next year.
It’s time for that ball to find a new home, so
come on out and bowl! We are still looking
for sponsors for the event. Please contact
Melanie Ely at [email protected] if you are
able to sponsor or for more details about
the event.
Rachel Coleman handles both civil litigation
and criminal defense at the Law Offices of
David Lehr in Ventura.
6 CITATIONS
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JUNE 2015
BAR LEADERSHIP
ADR SECTION
David Karen
498-1212
ANIMAL LAW
Katherine Hause Becker 525-7104
ASIAN BAR
John Fukasawa
383-2788
BANKRUPTCY
Michael Sment
654-0311
BARRISTERS
Katherine Hause Becker 525-7104
BENCH-BAR RELATIONS COMMITTEE
Hon. Matt Guasco
256-4972
BLACK ATTORNEYS ASSOCIATION
Jacquelyn Ruffin
644-7188
BUSINESS LITIGATION SECTION
Erik Feingold
644-7188
CITATIONS
Wendy Lascher 659-6800
CLIENT RELATIONS
Dean Hazard 988-9886
COURT TOUR PROGRAM
Thomas Hinkle 656-4223
CPA LAW SOCIETY
Enrique Schaerer
659-6800
Diversity Bar Association
Ed Elrod
644-4486
EAST COUNTY BAR
Doug Bordner
496-0111
EMPLOYMENT LAW
Joe Herbert
482-5340
FAMILY LAW BAR
Shane Loomis 494-7811
IMMIGRATION LAW
Matt Bromund
650-1100
INTELLECTUAL PROPERTY
Chris Balzan
658-1945
J.H.B. INN OF COURT
Hon. Tari Cody JUDICIAL EVALUATION COMMITTEE
Linda Ash
654-2580
LAW LIBRARY COMMITTEE
Eileen Walker 444-6308
LGBT Alliance
Ed Elrod
644-4486
MEXICAN AMERICAN BAR ASSOCIATION
Loraine Bailon 639-0037
Natural Resources Section
Gisele Goetz
895-5338
PRO BONO ADVISORY BOARD
David Shain 659-6800
PROBATE & ESTATE PLANNING SECTION
Amber Rodriguez 643-4200
REAL PROPERTY
Ramon Guizar 981-8555
SOLO SECTION
Adam Pollock
818-991-7760
VLSP, INC.
William Grewe 642-7101
VC TRIAL LAWYERS ASSOCIATION
Deirdre Frank
650-1200
VC WOMEN LAWYERS
Kathleen Smith 764-6370
VCBA STAFF
650-7599
Steve Henderson - Chief Executive Officer
Sandra Rubio - Associate Executive Director
Nadia Avila - Members Relations Director
Michael Sudman Esq. - VLSP Program Manager
Peggy Purnell - CTP Coordinator
JUNE 2015
•
CITATIONS 7
PRESIDENT’S COLUMN:
Continued from page 3
MCLE. Jill Friedman talks about In re
Marriage of Friedman (yes, one and the
same) and post-marital agreements, as
well as how the experience influenced her
professionally. What puts Jill over the top
as a speaker is her willingness to laugh at
herself. vcba.org; flyer. Shane Loomis is
teeing this up for you.
Thirsty Third Thursday. Barristers invites
EVERYONE (that means you) on June 24,
5:30-7:00, Discovery, 1888 E. Thompson,
Ventura. discoveryventura.com. Drop in….
and then abstain until after the Law Day
5k on the 27th!
“Ethically Managing an Estate Planning
Law Office,” June 25, noon. Wedgewood.
Speaker is Mary Kulvinskas, Esq. EP&P
section. MCLE-ethics. vcba.org; flyer. There
are a lot of moving parts and pitfalls under
this topic. As always, Katie Becker has put
a good program together.
Well, if the White House is not immune,
I guess Ventura County could be a target,
too. “Cyber Crime Hits Home: Identity
Theft Trends and Recent Scams in Ventura
County and Beyond.” June 26, noon.
Spanish Hills Country Club. Enrique
Schaerer, on behalf of the CPA/Law
Society presents Ventura County DDA
Howard Wise, whose background is farreaching, both in terms of white-collar
crime and consumer protection, as well as
geographically. Should be good. MCLE.
CPAlawsociety.com; vcba.org; or flyer (the
flyer is packed with info.)
A peek at July. Panda Kroll, Esq. is not
going to let you rest easy. Her string of
elimination of bias programs is either on
the cutting edge or just edgy. The April
29 “Bias & Blasphemy” program was
presented just days before the Texas cartoon
contest and was right on the money. Here’s
another in the series: Wednesday, July
1, noon, Bar offices. “Bias & Religious
Garb: The Headscarf (Hijab) Collides with
Abercrombie & Fitch.” Vcba.org; flyer.
A Reminder that Everything You Need,
You Already Have.
“If I could send a message to anybody, it’s not
about pole vaulting, and it’s not about track. It’s
about finding something that makes you happy
despite whatever obstacles are in your way.”
17-year-old Texas high school senior
Charlotte Brown, who is blind, is the
2015 Texas HS Bronze Medal winner in
the pole vault at 11-6. She counts seven
strides with her left foot, listens for a faint
beep, plants and soars as her guide dog
watches. She stood on the podium. Wow.
From Faria to Fillmore, tip your cup, or cap,
to the first month of summer, and thanks for
your support of our VCBA!
Bi l l Gre w e h a n d l e s
wrongful death, personal
injury, employment law
and workplace injury
cases at Rose, Klein &
Marias, LLP in Ventura.
and can be reached at
[email protected]
Get Your Programs Here! I am sending
Monday morning reminder emails to VCBA
members listing each week’s CLE programs
just in case someone did not hear about
something, or like me, forgot to register.
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8 CITATIONS
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JUNE 2015
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JUNE 2015
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CITATIONS 9
MAYBE “IPAD JUDGES” ARE NOT SUCH A GOOD IDEA
by Greg May
This article was adapted from Greg May’s
blog, The California Blog of Appeal
(http://www.calblogofappeal.com).
Reactions to the original post can be
found at at http://tinyurl.com/linkedinipad-judges or www.linkedin.com/grp/
post/6538009-6003618975127261187.
Footnotes are omitted from the print
version of CITATIONS, but they are
available in the online version at vcba.org.
Another version of this article appears
this month in the Appellate Law Journal.
With e-filing firmly entrenched in federal
courts and making headway in state courts,
the presumption is that an ever-increasing
number of appellate judges are reading
briefs and records on screens of some sort.
Articles like Writing a Brief for the iPad
Judge or Maximizing Your Appellate Brief
for the iPad recommend certain departures
from traditional brief formatting in order
to accommodate differences between
reading from a screen and from a printed
page. Fonts, heading styles and numbering,
organization and use of footnotes all deserve
special consideration if one is to maximize
the on-screen navigability and visual appeal
of a brief.
Such tips are helpful, insofar as they go, but
are there deeper differences between reading
from a printed page and from a screen that
cannot be overcome by formatting? Some
studies on the subject line up with what
I have felt intuitively for some time: for
comprehension and retention, the printed
page beats the screen.
Consider this summary of a Norwegian
study, from the website ScienceNordic:
Neo-Luddites rejoice: numerous
studies show that when you read a
text on paper your understanding is
deeper and longer lasting than if you
read that same text on a computer.
Of course, if you read the text on
a screen you can probably recount
what you read. But you cannot as
readily make use of the content
in other contexts. You haven’t
comprehended it as deeply and
assimilated it as substantially.
Digital information isn’t just a
fleeting phenomenon on your
computer screen. It disappears
more quickly from your memory,
too. Screens are best for superficial
and speedy reading.
ScienceNordic specifically noted an iPad
aspect of the study: “[The authors of
the study] compared reading of a short
narrative text on an iPad with reading it on
paper. The test subjects who read on paper
became more deeply involved with the
story than those who read it on the tablet.”
These findings correlate well with my
experience. Reading from a screen always
bothered me on an intuitive level. It is not
just the difficulty of navigating a document
on screen. (If anyone figures out how to
read an online newspaper page by page,
like a paper copy, please let me know.) It
is that I never feel I get as much out of
reading from a screen as I do from a printed
page. I find my iPad and Kindle (and even
my iPhone) just fine for reading blogs,
short articles and fiction - even novellength fiction. On the other hand, getting
through a non-fiction book on an iPad or
Kindle feels like a struggle. If I need to
read something analytically, I get a printed
copy so I can read off the paper and mark
it up with a pen as I go. Call me a tree
killer, but I am not about to give up this
practice. I have tried reading PDFs on my
screen, annotating them with PDF editing
software as I go along, but it is just not the
same for me.
I thought that it might have something
to do with the fact that I grew up reading
from paper. Online legal research in my
30s was my first exposure to extensive
screen reading. I was in my 40s when the
Kindle was introduced and 50 or so when
the iPad was launched. But the test subjects
in the Norwegian study were 10th grade
students, likely in their mid-teens. They
have probably done a good portion of their
reading from screens already, yet still had
greater comprehension reading from paper.
What about those even younger? Might
some of today’s kids, being brought up
reading from screens from an early age,
actually comprehend better as adults by
reading from a screen than from a printed
page? It will take us a while to find out, but
this anecdote from Scientific American got
me wondering:
In a viral YouTube video from
October 2011, a one-year-old girl
sweeps her fingers across an iPad’s
touchscreen, shuffling groups of
icons. In the following scenes, she
appears to pinch, swipe and prod
the pages of paper magazines as
though they too were screens.
When nothing happens, she
pushes against her leg, confirming
that her finger works just fine –
or so a title card would have us
believe.
The girl’s father, Jean-Louis
Constanza, presents “A Magazine
Is an iPad That Does Not Work”
as naturalistic observation –
a Jane Goodall among the
chimps moment – that reveals
a
generational
transition.
“Technology codes our minds,”
he writes in the video’s description.
“Magazines are now useless and
impossible to understand, for
digital natives” – that is, for people
who have been interacting with
digital technologies from a very
early age.
Continued on page 12
10 CITATIONS
•
JUNE 2015
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CITATIONS 11
12 CITATIONS
•
JUNE 2015
MAYBE “IPAD JUDGES” ARE
NOT SUCH A GOOD IDEA
JAMS EMPLOYMENT PRACTICE GROUP
Continued from page 8
That is a cute story – or maybe a horrifying
one, depending on your perspective – but
despite that introduction, the article notes
that “research suggests that reading on
paper still boasts unique advantages” over
reading on a screen.
Before you brand me a Luddite, consider
this: I own a PC, a MacBook, an iPad, an
iPhone and a Kindle. And, I love filing
documents electronically.
It is reading electronic documents that
concerns me, especially since many of
those depriving themselves of better
comprehension and retention may not
realize it for themselves, like I did. They
will not recognize that portability and easy
searching of text comes with a cost, and will
pay that price without knowing it. To make
that trade-off an informed decision, lawyers
should make the most honest evaluation of
their reading that they can.
Of course, not everyone is the same, and
there are some who get just as much out
of reading from a screen as from a printed
page. I am sure this includes many appellate
judges. I just hope that none of them ever
looks at me during oral argument and says,
“So, Mr. May, I read your brief on my iPad.
You got a problem with that?” Perhaps I
will just be grateful that he did not read it
on his Apple watch.
Greg May is an
appellate lawyer. He is
of counsel at Jones &
Lester in Oxnard.
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JUNE 2015
•
CITATIONS 13
THE “DISENTITLEMENT” SWORD: A LITTLE-KNOWN DOCTRINE THAT
PROMOTES CLIENTS’ INTERESTS WHILE ADVANCING JUDICIAL ECONOMY
by Roni Keller
An appellate court has the inherent power to
dismiss an appeal by a party that refuses to
comply with a lower court order. (Stoltenberg
v. Ampton Investments, Inc. (2013) 215 Cal.
App.4th 1225 [judgment debtor repeatedly
frustrated sister-state enforcement of
judgment orders; TMS, Inc. v. Aihara
(1999) 71 Cal.App.4th 377 [defendants
willfully refused to respond to postjudgment
interrogatories in the trial court].) “A party
to an action cannot, with right or reason, ask
the aid and assistance of a court in hearing
his demands while he stands in an attitude
of contempt to legal orders and processes of
this state.” (Id., at 1230.) Accordingly, an
appellate court may dismiss the appeals of a
party who has “an attitude of contempt to
legal orders and processes of the courts of
this state.” (In re Marriage of Hofer (2012)
208 Cal.App.4th 454.)
In Hofer, the reviewing court dismissed
appellant husband’s appeal outright when it
became clear that the reason there might not
have been substantial evidence to support a
judgment for spousal and child support was
that appellant husband had not complied
with discovery requests by respondent wife.
He was deemed “disentitled” to appeal.
Originally termed the “fugitive disentitlement
doctrine,” the doctrine has been tested in the
well-publicized cases of Roman Polanski,
who fled to Europe to avoid trial for
seduction of a minor, and Andrew Luster,
heir to the Max Factor fortune, who was
convicted in absentia by the Ventura County
Superior Court for drugging and raping
three women. Luster fled to Mexico, but
his attorneys appealed. The appeals court
dismissed his appeal because he was a fugitive
from justice. Five months after he fled,
however, he was caught by “Dog” the Bounty
Hunter Chapman, commenced his prison
term, and asked the court to grant rehearing
and reinstate his appeal. The appeals court
declined, writing in an unpublished opinion,
“But for his capture, he would be a fugitive
to this day. … [Luster] knew, or should have
known, that his flight could be viewed as a
waiver or abandonment of a statutory right
to appeal. ” (People v. Luster, No. B166741
2003 WL 21509182 at *1 (Cal. Ct. App.,
July 2, 2003).)
In contrast to the Luster dismissal, a Jane Doe
plaintiff was unable to apply the doctrine
against Roman Polanski to prevent him from
defending her civil suit, notwithstanding
his fugitive status in the related criminal
prosecution. (Doe v. Superior Court (1990)
222 Cal.App.3d 1406). While the court
found Polanski’s absence from the country
“reprehensible, irresponsible, and unlawful,”
it distinguished other cases where the
doctrine had been applied because “[i]n
each, the relevant proceeding was initiated
by the fugitive.” (Id., at 1409, emphasis
in original.) The reviewing court found it
could not preclude Polanski’s due process
right to defend litigation brought by the
civil plaintiff, absent failure to comply with
discovery requests or a similar violation
of a court order. (Id., at 1410.) Twenty
years later, however, he was unable to
overcome the doctrine when he sought
discretionary dismissal of his 30-year pending
prosecution. Polanski v. Superior Court (2009)
180 Cal.App.4th 507, 532 [“[A] fugitive
forfeits the right to invoke the jurisdiction
of the courts to review a judgment that the
fugitive flouts].”)
The disentitlement doctrine applies equally
to civil disputes, based on the equitable
doctrine of unclean hands and the principle
that “one who seeks equity must do equity.”
(Gwartz v. Weilert (2014) 231 Cal.App.4th
750, 758, n. 5.)
“Dismissal is not a penalty imposed as a
punishment for criminal contempt. It is an
exercise of a state court’s inherent power to
use its processes to induce compliance with
a presumptively valid order.” (Stoltenberg,
supra, 215 Cal.App.4th at pp. 1229-1230.)
Thus, the disentitlement doctrine prevents a
noncompliant party from seeking assistance
from the court.
Appellate disentitlement is a discretionary,
and not a jurisdictional tool to be applied
when the balance of equitable concerns make
it a proper sanction. (In re E.M. (2012)
204 Cal.App.4th 467, 474.) The doctrine
is appropriately tailored by the court under
differing circumstances. For example, the
court has applied the disentitlement doctrine
in the case of In re E.M. to deny a mother the
right to challenge orders on appeal because
her lack of compliance with the juvenile
court’s orders frustrated its ability to protect
her children. (Id.)
In another example, a party had been
ordered by the trial court to turn over funds
to a court-appointed receiver in protracted
litigation but had failed to do so. Citing the
appellant’s continuing defiance of the trial
court’s orders, the reviewing court stayed the
pending appeals for 30 days, with an order
that they be dismissed if the conditions for
lifting the stay – compliance with the trial
court’s orders – were not satisfied within
that time. (Alioto Fish Company, Ltd. v.
Alioto (1994) 27 Cal.App.4th 1669, 1691;
see also Blumberg v. Minthorne (2015)
233 CalApp.4th 1384 [Trustee’s refusal to
comply with trial court order regarding
conveyance of real property warranted
dismissal of her appeal under the
disentitlement doctrine].).
Stoltenberg, applied the doctrine to dismiss
an appeal where the appellants had failed
to post a bond and were in contempt of a
subpoena for financial information in a sister
state. A commonly held misconception is
that appeals automatically stay trial court
decisions. With respect to money judgments,
to obtain a stay pending appeal the appellant
must post a bond guaranteeing payment in
the event the appellant does not succeed.
(Code Civ. Proc. § 917.1.)
The trial court has parallel power as
sanctions in discovery, and the sanction of
disentitlement is likely to be extended. With
the interests of judicial economy in trial courts
at an all-time premium, savvy trial lawyers
may raise the doctrine in cases prosecuted
Continued on page 15
14 CITATIONS
•
JUNE 2015
BRINGING CIVILITY TO CIVIL LITIGATION
by Sasha L. Collins
Many of you are probably familiar with the
story of Chris Prewitt, the Ventura educator
who was struck and killed in April 2014 by
Shante Chappell, a young woman driving
under the influence of Xanax.
Although cases like this frequently involve
prolonged criminal proceedings, this one was
quickly resolved after Chappell pled guilty
to felony gross vehicular manslaughter while
under the influence of alcohol or drugs. Her
plea came just a few days after her arrest.
At Chappell’s sentencing, Chris’s widow,
Erin Prewitt, urged the judge not to sentence
Chappell to prison. In years past, Prewitt
worked for the Office of Child Abuse
Prevention, where she developed a familiarity
with and understanding of the prison system
in California. Despite the fact that Chappell
killed her husband, Prewitt’s understanding
of the prison system led her to feel strongly
that sentencing Chappell to prison was not
the best resolution. According to Prewitt, it
was her husband. Why shouldn’t she get to
have the final say in the sentencing decision?
In the end, despite Prewitt’s requests that
Chappell receive probation, Judge Ryan
Wright sentenced Chappell to four years in
prison, which she is currently serving.
Although Prewitt did not get the results
she wanted in the criminal trial, she is now
exploring her options in the civil arena. As
a widow whose husband was killed by an
intoxicated driver, the logical next step might
be to bring a personal injury lawsuit against
Chappell. Under traditional circumstances,
Prewitt would bring a wrongful death action
against Chappell seeking monetary damages
for loss of income, loss of consortium and the
like. However, Prewitt has a knack for doing
things in the non-traditional way.
With the help of her attorneys, Trevor Quirk
and Alethia Gooden of Quirk Law Firm
in Ventura, Prewitt decided to forego civil
litigation. Instead, she has decided to enter
into a civil contract with Chappell. Two
primary factors facilitated this decision.
First, although Chappell had automobile
insurance, she carried only the minimum
insurance required by California law: $15,000
for injury/death to one person and $5,000
for property damages. Of course, Prewitt
could try to collect more than the insurance
amount by suing Chappell for any damages
in excess of the policy. Yet, her chances of
actually recovering anything above the policy
limits through civil litigation would be slim.
Although Chappell was previously employed
at a bank, she is in her early twenties and does
not have significant net worth. After Prewitt
got a judgment against Chappell, she could
try to garnish her wages and levy her assets.
Chappell would not be able to bankrupt the
judgment since she operated the vehicle while
intoxicated.
Second, Prewitt was not interested in the
money as much as she was interested in
Chappell taking responsibility for her actions.
Throughout this whole process, Prewitt has
always sought the truth. In her own words,
Prewitt considers herself “authentically
pragmatic.” Prewitt has openly and repeatedly
expressed forgiveness towards Chappell. Yet,
despite her ability to forgive, Prewitt still has a
strong desire to know exactly what happened
to her husband and why. Why did Chappell
choose to take Xanax that day? Why did she
choose to drive under the influence of Xanax
that day? And most importantly, what is
Chappell going to do to fix it?
The strong desire to effectuate change and
to uncover the truth is primarily what has
driven Prewitt to pursue alternative routes
to the standard course of civil litigation.
Currently, Prewitt’s attorneys are in the
process of negotiating the terms of a contract
between Prewitt and Chappell. In essence, the
contract will likely be akin to parole terms:
Chappell will abstain from using drugs and
alcohol, she will attend counseling, and she
will participate in other activities to benefit
the community, such as speaking to youth
about domestic violence or drug use. But
if Chappell fails to uphold her end of the
bargain, Prewitt would have a cause of action
for breach of contract, at which point she
could seek monetary damages. Although
Prewitt is open to working with Chappell to
encourage her to change her life for the better,
Prewitt is also pragmatic.
Simply bringing a civil lawsuit against
Chappell for the death of her husband just
didn’t feel right to Prewitt. Instead, Prewitt’s
ability to create and mold the terms of
her own contract with Chappell has been
empowering. It is a way for her to infuse a
tragic situation with meaning and purpose.
Not only that, but it gives Chappell a second
chance to make a positive impact on her
community, despite everything that has
happened. Perhaps most interesting is that
all of this can be done outside of the normal
parameters of protracted civil litigation.
Presently, Prewitt and her attorneys are in
the process of ironing out the specifics of
her contract with Chappell. They encourage
other attorneys to look into this approach
as well. The loss of a loved one is a terrible
tragedy, but it doesn’t have to turn into years
of civil litigation. Instead, this story has shown
us that an open mind and the right set of
circumstances can be an opportunity to turn a
tragic situation into an empowering one.
Sasha L. Collins is an associate attorney
at StakerLaw Tax & Estate Planning Law
Corporation in Camarillo. She focuses primarily on
probate, trust administration, and estate planning
[email protected].
Christina Vanarelli, Inc.
a professional law corporation
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Continued on page 13
by chronically disobedient litigants. The
trial court has “broad authority to levy the
ultimate sanction when prior efforts yielded
no results.” (Liberty Mutual Fire Ins. Co. v.
LcL Administrators, Inc. (2008) 163 Cal.
App.4th 1093, 1105.) Where a party fails to
obey a prior order, the court may make those
orders that are just, including the imposition
of an issue sanction, an evidence sanction
or a terminating sanction. (Code Civ. Proc.
§ 2030.290.) Specifically, the court may
impose a terminating sanction against a
party who misuses the discovery process by
an order “[d]ismissing the action, or any part
of the action, of that party.” (Code Civ. Proc.
§ 2030.290, subd. (d)(3).)
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CITATIONS 15
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Stonewalling is not appropriate to a litigant
who hopes to have access to the courts, and
this power of terminating sanctions is ripe
for expansion to other misconduct in the
trial court that seeks to frustrate, through
lack of cooperation, the right to due process
of law for all parties. Where a party fails to
obey a prior discovery order, the court may
make those orders that are just, including the
imposition of an issue sanction, an evidence
sanction or a terminating sanction. (Code
Civ. Proc., § 2030.290.) Specifically, the
court may impose a terminating sanction
against a party who misuses the discovery
process by an order “[d]ismissing the action,
or any part of the action, of that party.” (Code
Civ. Proc. § 2030.290, subd. (d)(3).)
Creative trial lawyers may wish to consider
use of the disentitlement doctrine as a sword.
On appeal, that sanction, while not widely
known, is readily available to prevent an
appeal from going forward, pre-briefing. The
disentitlement doctrine can be used both to
encourage and guarantee compliance with
court orders, as well as to discourage or cut
short protracted litigation by a less-thansavory party.
Roni Keller, Esq., is the
principal of Law Offices
of Roni Keller in Newbury
Park. She is a Civil
Appellate Specialist who
is regularly appointed by
the Judicial Council to
brief dependency and other
matters.
16 CITATIONS
•
JUNE 2015
Ear to the Wall
Diana P. Lytel, partner at Lytel & Lytell,
LLP, has been selected to the 2015 Super
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list. The honor is reserved for those lawyers
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Slaughter, Reagan & Cole, LLP has named
Megan Winter a partner of the firm,
effective May 1, 2015. Slaughter, Reagan
& Cole, LLP is also pleased to announce
that Ms. Winter has been selected to the
2015 Super Lawyers Southern California
“Rising Star” list by California Super
Lawyers magazine. Ms. Winter has also
been recognized as a 2015 Top Women
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0518_AX_citations_01_r1.indd 1
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JUNE 2015
•
CITATIONS 17
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18 CITATIONS
•
JUNE 2015
Exec’s Dot…Dot…Dot…
by Steve Henderson, Executive Director, M.A., CAE
materials and food supplies to several
villages. As time wears on and people
cannot work, funds for food and rebuilding
are running low. People are very worried
about the coming monsoons. The Kirwin
International Relief Foundation (KIRF)
has teamed up with Ventura Rotary and
local Nepalese Rotarians for this effort…
Donation info to follow.
The first judge to register for the 32nd
Annual Law Day 5K was the Hon. Rocky
Baio. Register at www.
runsignup.com and enjoy all
the festivities this event has
to offer, including $2,000
in cash prizes and stays
at Biltmore Four Seasons
and Fess Parker’s Resort.
To volunteer, contact race director Joe
Strohman at 659-6800 or jstrohman@
fcoplaw.com. Proceeds benefit our newly
named Ventura County Legal Aid (the old
VLSP, Inc.)…Marc Garcia, the youngest and
first Latino Superior Court judge in Merced
County, agreed to step down in mid-May
to end an investigation into $250,000 he
received from his former defense law firm…
For a year now, bar staffer
Michael Pamplona has
been working in our
offices doing all sorts of
menial (grabbing lunches
for 40 from Royal Bakery
and schlepping it back to
the offices), handyman
(building file cabinets) and administrative
duties (making a dozen LRIS appointments
in one day). He was notified Friday evening,
May 15, at 6:07 p.m., that he had indeed
passed the State Bar exam. You may now
refer to Michael as Counselor. Being
sworn-in during ceremonies June 9 at 4:00
p.m. inside Courtroom #22…
VCBA board member
Mark Kirwin is in
Kathmandu assessing
the earthquake damage
and providing roofing
Thanks to J. Roger Myers, I sit corrected.
He found an active lawyer who has a bar
number much lower than Bill Hair. Gordon
Lindeen, a graduate of
Stanford Law School, was
admitted to the State Bar
in January 1956. His bar
number is 26774. Sorry Bill,
and a lunch for Roger!…The
dramatic drop in law school
applicants – a 40 percent decline between
2005 and 2014 – has many wondering when
demand for a law degree will finally rebound.
Not this year, at least. The latest numbers
released by the Law School Admission
Council indicate that the downward spiral is
still…spiraling. As of April 17, only 47,172
people have applied to go to an accredited
U.S. law school this fall, according to LSAC,
which administers the LSAT entrance exam.
That’s a 2.6 percent fall-off compared
to a year ago. Applications are down 4.7
percent from 2014…The Black Attorneys
Association is now called the Black Lawyers
of Ventura County and the latest affiliate of
our bar association. President
Ja c q u e l y n Ru f f i n has
created an application that
may be had at www.vcba.org.
Click “About” in the menu
bar, then click “Sections.”
Jacquelyn may be reached at
644-7188 or [email protected]...
Johnson Moore is proud to announce that
Stephanie A. Johnson has joined the firm
as an associate. Stephanie did
her undergrad at UCSB and
attended the Ventura College
of Law. She’ll be working
with the partners at all phases
of litigation and screening
all potential new cases. She
may be reached at 988-3661 or Stephanie@
johnson-moore.com...
LAWYERS– Pay attention! The State Bar of
California takes the MCLE very seriously
these days, in case you haven’t heard. Case
in point: A lawyer from Calabasas was
suspended for 30 days and placed on one
year probation for reporting to the State Bar
that she was in compliance with her MCLE
requirements when she knew she was not,
an act of moral turpitude…Japan? Don
Greenberg visited his son, Steven, who has
been living there more than twenty years.
It all grew out of Don hosting exchange
students with the Lions Youth Exchange
program for six weeks when Steven was
fifteen. His daughter-in-law, Mika, and two
grandchildren, ages eleven and eight, speak
both English and Japanese fluently. By the
way, Don recommends the Shinkansen (the
bullet train) as the mode of transportation.
Oops – Tom Olson has rightfully corrected
me on the recent hiring of Tina Schoneman
and Panda Kroll. Tina comes in as a full
shareholder and Panda as an associate…
It’s movie night at the courthouse. U.S.
9th Circuit Court of Appeals Judge Alex
Kozinski, his identification and security
tags hanging from his neck, greets dozens of
people who have shown up early for a guided
tour. Later, the visitors line up in a court
hallway to pick up pizza, salad, and beer,
wine or soft drinks. Then they’ll adjourn for
a movie called Tim’s Vermeer and a chat by
the subject of the movie. Kozinski holds the
event, known as KFF or Kozinski’s Favorite
Flicks, three or four times a year at the San
Francisco courthouse and likewise at the
Pasadena Courthouse – LA Times, written
by Maura Dolan…Quote of the Month:
“A fish is, of course, a discrete thing that
possesses physical form. See generally Dr.
Seuss’ One Fish Two Fish Red Fish Blue Fish
(1960).” U.S. Supreme Court Justice Elena
Kagan, asserting in her dissent in Yates v.
United States (2015) 135 S. Ct. 1074 that
fish are tangible objects…
Steve Henderson has been the Chief Executive
Officer of the Bar Association since Nov. 1990.
He reminds you all that June 1 is National
Leave the Office Early Day and June 15 is
Magna Carta Day. A regular on Mad Men
& Letterman Show, he may be reached at
[email protected], FB, Twitter at stevehendo1,
LinkedIn, or better yet, 650-7599.
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CITATIONS
PRSRT STD
US POSTAGE
Ventura County Bar Association
4475 Market Street, Suite B
Ventura, CA 93003
PAID
PERMIT NO. 507
OXNARD, CA 93030
Name the Lehr Kid Contest
We are expecting Child #10 on July 21. I am
offering one bottle of 2010 Sea Smoke Ten to
the individual who emails me the most correct
answers to the following questions
BEFORE the baby’s Birth:
1)
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5)
Date of actual birth? (10 points) )
Name? (50 points)
Gender? (10 points)
Height ? (10 points)
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#10 still cooking
Current kids are named:
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girls and 3 boys. Wifey always has C-sections. If this contest violates
some state law, then I will find another way to give you the bottle!
YOU MUST BE 21 or over to enter!
22 years of trial experience
We appreciate your civil and criminal referrals!
Email: [email protected]
805-477-0070
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